AG Barr’s Summary Letter Hides as Much as It Reveals

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Attorney General Barr’s letter has given the country a very top-line look at the Mueller investigation, while hiding a mountain of evidence of misdeeds behind rather anodyne language. I encourage a reading if only because I quote liberally from the letter.

For instance, in the section addressing whether the President conspired to affect our election with the Russians, the AG and the Special Counsel were very careful to narrowly define the term “coordination,” which anchors the conclusion that the Trump campaign did not “coordinate” with the Russian government in their efforts to affect the election. In Footnote 1 the AG carefully cabins “coordination” only as an “agreement – tacit or express – between the Trump Campaign and the Russian government on election interference.” I can drive multiple trucks through such a definition, and so could the Attorney General.

For instance, if a member of the Trump Campaign were to make an agreement with foreign parties that were NOT strictly-speaking members of the Russian government, that would not be coordination under the terms that Mueller used. The government of Russia’s influence is quite diffused throughout the technically private sectors of Russia society, thus there may have been cut-outs used to hide the hand of the Kremlin. Mueller’s definition would not apply to such a conspiracy because it is not with the Russian government, per se.

Because there is so much wiggle room to define away collusive activity, I place no stock in the AG’s assertion that no conspiracies occured. Instead, reading the letter, I get a strong impression that there is plenty of evidence that does not rise to “coordination” as cabined by the Special Counsel, or does not rise to the standard of proof of ‘beyond a reasonable doubt’. In short, no indictment does not equal no conspiracy, and certainly does not equal no evidence of a conspiracy. In fact, I think that there will be plenty of compelling evidence of attempted and actual conspiracy that may not clearly lead to the Russian government, does not stand the weight of ‘beyond a reasonable doubt’, or that does not bear directly on election interference.

As to the question of whether the President obstructed justice, Barr acknowledges that the President did a bunch of really stupid stuff right out in public that looks a lot like obstruction. Ultimately, Mueller himself concluded that there was evidence on both sides of the question (which AG Barr will not show us) and declined to make a charging decision, preferring to allow the Congress to make such a call. Barr acknowledges that Mueller’s report “does not exonerate him” [the President] even as it does not indict him.

So Barr takes it upon himself to exonerate the President of obstructing justice. He claims that after considering the evidence, he does not think that evidence beyond a reasonable doubt exists as to obstruction and thus “I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish (ed. – beyond a reasonable doubt is implied here…) that the President committed an obstruction-of-justice offense.”

What a ringing exoneration: I couldn’t find enough evidence to make a slam-dunk case, so I am not recommending indictment.

Barr goes on to explain that one of the factors he used to make such a determination is that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” In other words, part of why Barr concludes the President did not obstruct justice is that there wasn’t sufficient evidence that there was “coordination” between the Campaign and the Russian government. Nothing to cover up equals no obstruction, in Barr’s estimation. Barr is careful to explain that the President is not being charged largely because he concludes that the government cannot prove “beyond a reasonable doubt that a person, acting with corrupt intent engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.”

This formulation leaves two gaping escape hatches, which I have italicized above. ‘Corrupt intent’ would only include the President acting with an underlying awareness that a specific coordination with the Russian government had occurred, which Barr says Mueller did not find (though we haven’t seen any of that evidence). Because there was no “coordination”, there can’t be corrupt intent.

That is bullshit. Just because Mueller declined to prosecute on “coordination” does not automatically mean that the President cannot have obstructed justice as to acts outside of “coordination” as defined by Mueller.

As to “a sufficient nexus to a pending or contemplated proceeding,” Barr seems to conclude that the President never sought to prevent or disrupt Congressional investigations, FBI investigations, or the Special Counsel’s investigation. That seems ludicrous on its face given just what the President has done in public. I have to conclude that Barr rests his analysis mainly on the conclusion above that there wasn’t sufficient evidence of the underlying “coordination.”

In short, Barr sets a very high bar to any charge of obstruction mainly because there is not evidence beyond a reasonable doubt of “corrupt intent” by the President.

To the extent that the Barr report alleges truthfully that Mueller intended no further charges, it rest solely on the remarkably shaky premise that there is not evidence beyond a reasonable doubt that “coordination” (in a very strictly defined sense) occurred, thus there could not be a “corrupt intent” behind the President’s obvious and hamfisted attempts to obstruct the investigation. This is a very narrow and technical exoneration of the President, which Barr had to carefully construct so as to give temporary cover to the Administration, which is the job he was hired to do.

The blowing of horns on the Right to announce “exoneration of the President” is greatly premature and will look foolish if and when Mueller’s underlying evidence is made public, or available to the Congress.

I suspect that a multitude of sins are covered by Barr’s letter. The underlying evidence may not contain a smoking gun, that would be hard to cover up, but it is likely to contain a great deal of political and moral failings that the President and his Administration will eventually have to answer for politically, if not in a criminal court.